Listing matters of interest pertaining to the Natives of The Land Below The Wind - Sabah - and their traditions, cultures and heritage, and any other matters of public interest. If you have anything interesting subject to share with, please drop a line at sjdisimon@gmail.com.
ARTICLES OR COMMENTS WRITTEN BY INDIVIDUALS AND PUBLISHED IN THIS BLOG DO NOT NECESSARILY REFLECT THE OPINION OF Linundus Kinabalu.

Tuesday, July 14, 2009

What the layman perceives to be fair and what is legally correct can sometimes be two different things.

WHAT may appear to be fair and just viewed in isolation may not necessarily be so when viewed in the context of legal principles as enshrined in statutes.

Those who think that the law equals the individual’s notion of what is generally thought to be fair and just, will be in for a disappointment when such expectations are tested in court against cold legal principles.

This happens in different aspects of life. The reality only dawns when the laws are tested against real-life situations that come before the courts. One example of this can be found in an old case in relation to election petitions.

Where a document in the context of litigation is to be served on an opponent through publication in a gazette, invariably printed by the government printers, one would hardly think that the individual is to blame or have to bear the consequences of delay by the printers.

Yet this is exactly what happened in Chong Thain Vun vs Watson & Anor and related cases which involved a challenge to the person declared elected to deny him victory. Such a challenge is through a petition.

The person who commences the proceedings by filing a petition is called a petitioner. The person whose election is challenged would be the respondent. The relevant legislation provided for a notice of the presentation of a petition to be served on the respondent within 10 days.

It was provided for such service to be affected either by delivering the notice to an advocate appointed by the respondent or by posting the same in a registered letter to the address given.

If no advocate had been appointed, or no such address given, service was to be by a notice published in the gazette stating that such petition had been presented, and that a copy of the same could be obtained.

However, the respondent had neither given his address nor appointed an advocate and solicitor.

This being the case, the only option appeared to be that service would have to be through publication in the gazette, a request for which was duly made.

Printing department

However, the gazette could not be published in time not because the petitioners delayed submitting the notice but because of problems in the printing department. This was explained as attributable to three printing machines not being in order and two others operational but not working properly.

This, according to the witnesses, made it necessary for the magazines to be taken out for cleaning. The upshot of this was that the gazette only appeared later and as a result, the publication of the notice was out of time, pursuant to the Election Petition Rules 1954.

The respondent took objection on the basis that service was out of time. This ground alone would be enough to dismiss the petition.

The eminent advocate of the time, the late Datuk David Marshall, argued that from the circumstances as disclosed by the facts, the petitioners had complied with Rule 15.

On behalf of the petitioners, he sought to rely on the principle of construction that a statutory enactment must be read subject to reasonable possibility of performance. He submitted that the petitioner had done everything possible, and the notices could have been published in time and drew an analogy with Queen vs Justices of London & Anor.

Queen vs Justices of London

Queen vs Justices of London & Anor was a case where the law provided for dealing with appeals against assessment by the local courts. The law provided for all appeals to be determined by March 31 of each year. However, as this could not be done, a challenge was taken to the matter being heard on the basis that it was out of time.

Allowing the appeal to be heard, Lord Esher went on to say that the “Act must be read as all enactments are, subject to their not being made absurd by matters which never could have been within the calculation or consideration of the legislature”.

His lordship went on to add that the glut of business in the court, and the inability of the court to cope with it, is not to be brought into play against the parties, who as far as they are concerned, have obeyed the imperative enactment of the statute by putting down their appeal within time.

However, the court in the Malaysian case rightly distinguished the English case on the ground that the appeal was lodged within time but could not be heard due to the glut of business in court. The fault did not lie with the parties but with the court.

On the question of service, the court also took the view that section 7(2) of the Courts of the Judicature Act 1964 allowed personal service which had not been attempted an interpretation that in itself is not unquestionable.

But the proceedings were clouded further because of the suggestion that the delay was deliberate. This was attributable to the fact that the printing department was under the portfolio of the chief minister who was one of the respondents and that another respondent was the son of the government printer.

In fact, the learned judge seems to have conceded that counsel Datuk David Marshall had quite properly submitted evidence that there was irresistible inference that the printing of the notices was deliberately delayed.

Judge Lee Hun Hoe went on to say that though the facts suggesting this were most unfortunate and embarrassing, it did not necessarily follow that the government printer must give his loyalty to his son and the Chief Minister rather than loyalty to his official duties and obligations.

Of course, the court was not entirely wrong in considering that the government printer was not an officer of the court and its failure would not be the fault of the court.

Of course, another aspect of the matter that would have supported the court’s decision was that there was no attempt to seek an extension of time. However, given such a scenario, the public may be forgiven for having doubts about the fairness of such a situation, legal technicalities notwithstanding.